Court awards Judge Sh3.2 million in retirement benefits battle

The Judicial Service Commission (JSC) has been ordered to pay the family of the late former Justice Jonathan Havelock more than Sh3.2 million as compensation for use of his personal car while at work and leave pay.

Employment and Labour Relations Court Judge Linnet Ndolo ruled that it was unfair for the Judiciary to deny Justice Havelock the money while it was aware that he was using his own car to and from work.

The commission had declined to pay the judge, claiming that the Salaries and Remuneration Commission had consolidated all the allowances into gross salary.

Justice Ndolo said that the commission ought to have warned Havelock that failure to take a government vehicle and an official driver would be at his disadvantage.

"There was not a single letter written to the Judge putting him on notice that he was using his personal vehicle at his peril or that the transport allowance already paid to him would be recovered," said Ndolo.

The Judge had opted to forfeit the government vehicle and driver. In its place, he decided to use his personal car and driver. This made him eligible for Sh122,000 compensation every month.

Havelock sued JSC and Treasury Cabinet Secretary arguing that her late husband ought to be paid his dues, including for the work he did for the judiciary after retirement.

He however died before taking the witness stand. His widow, Mary Elizabeth Harvelock took over the case.

According to Elizabeth, her husband left the judiciary at 70 years old. However, former Chief Justice Willy Mutunga engaged him to work at the Judiciary Training Institute (now the Kenya Judiciary Academy).

Justice Havelock was appointed as a Judge on September 8, 2011. He worked as a commercial court judge until August 16, 2014 when he retired.

At the heart of the battle was the medical cover for himself and his spouse as well as a personal accident cover. He argued that he opted to keep his personal insurance owing to the short period he was to serve as a judge.

Havelock asked the court to award him Sh 199,927 as reimbursement the insurance cover.

Upon retirement, Sh3.5 million was tabulated as gratuity. Out of the amount, only Sh1.2 million was paid.

Harvelock also asked for Sh2.4 million as transport allowance and a further Sh1.2 million for the 94 leave days he had accumulated.

The judge said that he worked at the JTI between September and October 2014, after which he was notified by the JSC secretary that there were budgetary constraints.

His widow told the court that upon retirement, the judge was allocated an old government car that broke down soon after.

In response, JSC argued that it was clear that judges ought to retire at 70, therefore Harvelock's contract could not have been extended.

It claimed that he was paid all his dues adding that Salaries and Remuneration Commission (SRC) was categorical that he was not eligible for compensation over use of his personal car.

It further asserted that there was no agreement with the judge that he would get reimbursement for use of personal cover.

Justice Ndolo said that the judge had a legitimate expectation that he would be paid back for using his own vehicle.

On the insurance, she said that the judges request would have been difficult to tabulate as the judiciary takes a group cover for all.

At the same time, the judge said that there was no law or policy decision allowing the same.

In the meantime, she said Mutunga denied allowing Harvelock to continue working. Shew was of the view that she could not infer any employment relationship that could be enforced by the court.